Why you should care

Because this could be a turning point for what we think of as copyright.

By Jack Doyle

The Daily DoseNOV 25 2016

As a law student at the National Academy of Legal Studies and Research in Hyderabad, India, Arushi Garg spent most of her time reading photocopies, which made a lot more sense than buying bound textbooks that cost $200 or more. “For me, the process of reading photocopied course packs and then pursuing further learning on my own was exciting,” says Garg, who is studying for her Ph.D. in law at Oxford. “That’s why I decided to become an academic.”

So, it came as a surprise to Garg in August 2012 when three publishers, including the university presses of Oxford and Cambridge, sued Delhi University and the Rameshwari Photocopy Service for violating copyright laws and causing financial losses. The case pushed a lot of hot buttons — East vs. West, neocolonialism vs. independence, public interest vs. private intellectual property, affordable access to knowledge vs. profit motive. In some ways, it was similar to the battle taking place in India over access to medicine, which recently resulted in a significant victory for producers of low-cost drugs. Some experts wondered whether the Delhi case would have the same effect in the groves of academe.

Academic publishers have become really scared.… They’re being challenged in a big, fundamental way.

Shamnad Basheer, intellectual property legal expert

Delhi University fought back, arguing that its students’ use of photocopied books was based on educational needs, not commercial gain, and came under the “fair use” exemption to India’s copyright law. In October 2012, the court sided with the publishers and issued a temporary injunction, which turned out to be not so temporary: Nearly four years later, the court finally dismissed the lawsuit, claiming that “copyright is not a divine right” and that “no actionable infringement” had occurred. The court decision signaled that India was going to buck global legal trends, which have tended to side with private copyright demands. “We are not going to blindly adhere to Western norms,” says Shamnad Basheer, an Indian legal scholar and champion of educational access to published works. “We will look at our laws and requirements. This judgment cements that stand.”

The textbook battlefield extends far beyond India. Four years ago in Costa Rica, a series of protests over a proposed law that would have made photocopying textbooks illegal culminated in 3,000 students marching on the legislative assembly. In response, then-president Laura Chinchilla issued an executive order that permitted photocopying for academic use. In 2008, a trio of publishers, again including the presses of Oxford and Cambridge, sued Georgia State University for making book excerpts available online to students. The district court ruled against the plaintiffs on nearly every count in what is believed to be the first lawsuit filed over digital course packs. (Cambridge and Oxford University Presses did not respond to OZY’s requests for comment.)

Rich publishers are unaccustomed to losing copyright battles — and certainly not repeatedly. Basheer explains that the Delhi lawsuit and similar court cases represent a pivotal moment in the concept of copyright. During the past century, he tells OZY, “intellectual property lobbies got stronger and stronger to the point that they became the norm. This is the real reason that academic publishers have become really scared about this [Delhi] judgment. They’re being challenged in a big, fundamental way.”

Basheer’s own career reflects the close, fraught relationship between academic and publishing circles. Though he’s been published twice by Oxford University Press, he has nevertheless seen the drastic impact that limiting educational resources can have on students and teachers alike. His recent work, Overlapping Intellectual Property Rights, highlights what he sees as basic education access problems common in developing countries. For one thing, Basheer says, his own book, which fetches as much as $230 on Amazon, costs more than a year’s tuition for his students in India. “This is about control — controlling every way that these books are distributed — so we can monetize every aspect of distributing knowledge,” Basheer says. “Presses aren’t getting that people are realizing they can now cut out the middleman to a large extent.”

But with the printed word in decline around the world, university presses have reason to worry about the future of books, and these elite institutions show all the signs of continuing their attempts to maintain a monopoly. Though Basheer and other educators are rightly hopeful for a bottom-up, open-access change to the world of publishing, it’s still unclear what that future will look like or who will be driving it.

Although Basheer is a lawyer, he thinks getting the law involved in new models of thinking and sharing only hinders a greater good. “There is a beauty in organic evolution,” he says. “We’re very creative as a species.”